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TMI Blog1991 (1) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... al Secretary, the second plaintiff, who has also been the Joint Secretary of the Indian Olympic Association, has filed the suit impleading the first defendant described as the President of the Indian Olympic Association and the second defendant described as the Secretary General of the Indian Olympic Association and alleging that the Association is a Society registered under the Societies Registration Act having its office at New Delhi. The members of the Association consist of National Sports Federations/Associations whose sport is included in the Olympic/Asian or Commonwealth Games, National Sports Federations/Associations which represent widely played Indian sports recognised by the Association, Olympic Associations of States as well as centrally administered Union Territories, service Sports Central Boards and Indian citizens who are member of the Olympic Committee. The Association has its own constitution containing the Memorandum of Association and Rules and Regulations which is the binding contract between the members of the Association. The management of the Association is entrusted to the Executive Council constituted under the Rules. Article VII of the Constitution provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged in the plaint) the Special General Meeting could not be convened. Yet, by a notice issued on 28-5-1990, the first defendant convened a Special General Meeting of the Association on 15-6-1990 at Park Sheration Hotel at Madras to consider and pass the following resolution as required by the requisitionists. "Resolved that this House has lost confidence in the present Executive Council of the Indian Olympic Association and to elect New Executive Council leaving the legality of the requisition to be decided by the General Assembly. The plaintiffs have not only sought a declaration that the notice dated 28-5-1990 issued by the first and second defendants on the basis of the requisition notices convening the Special General Meeting of the Indian Olympic Association on 15-6-1990 is illegal, null and void, but also a consequential injunction restraining the defendants from convening and conducting the Special General Meeting on the said date or on any other day at any other place and from considering and taking decision on the resolution mentioned in the notice. The plaintiffs have also filed an affidavit and application in the said suit seeking an order of injunction restrain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit and the application earlier and seek for interim orders," and that "I submit that if this Hon'ble Court is not inclined to grant the interim order of injunction restraining the holding of the Special General Meeting for any reason, I pray that this Hon'ble Court may be pleased to order that the resolution viz., "Resolved that this House has lost confidence in the present Executive Council of the Indian Olympic Association and to elect new Executive Council." shall be passed in the Special General meeting of the IOA to be held on 15th June 1990 at 12.15 p.m. at Park Sheraton Hotel, Madras by secret ballot only and that the IOA President shall preside over the said meeting." On that very day Learned Trial Judge ordered for Judge's summons under Order 14 Rule 8 of the O. S. Rules read with S. 151 of the Code of Civil Procedure and handed over the same to the learned counsel for the plaintiffs. This time it said, why the Court be not pleased to order that the resolution mentioned in the meeting notice dated 28-5-1990 issued by the defendants be passed in the Special General Meeting of the Association to be held on 15-6-1990 by secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the meeting and, "The President informed the members about the orders issued by this Hon'ble Court and the Delhi High Court. The observer also read out order of this Hon'ble High Court and said that the members must abide by the order. The respondent and his men shouted that there will be voting only by show of hands and they rushed towards the chairs occupied by the President, Secretary General and the Observer. The said persons placed two chairs near the President and the respondent occupied the same and declared that the resolution of No Confidence has been passed and he has been elected as the President of I.O.A. When Sri B. S, Adityan instructed the officials of I.O.A. to issue the ballot papers the respondent instigated his supporters to go and seize the papers. Apprehending violence the President Sri. B. S. Adityan gave a request to the Commissioner of Police for a bandobust for peaceful voting. The President, Secretary General, the observer and the members including the respondent and they were sitting in the Meeting Hall till 4-30 p.m. In response to the request of the President, the Police Officers came to the Meeting Hall and stood guard for the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese outsiders was denied by the members of the Indian Olympic Association posted at the entrance door of the hall but by reason of Thiru V. C. Shukla shouting to these members and asserting himself under cloak of his status as a Member of Parliament and a former President of the Indian Olympic Association the outsiders brought by him gained entry into the meeting hall. (iii) That Shri Avadh Behari Rohtagi, former Judge of this Hon'ble Court and Observer read out the order of this Hon'ble Court in CMP No. 6953 of 1990 to the entire assembly before commencing voting by secret ballot. (iv) That this Hon'ble Court's order required the poll to be conducted through secret ballot but Thiru V. C. Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh and persons who are outsiders pounced on Thiru Avadh Behari Rohtagi, former judge of the Delhi High Court and assaulted him, tore off the ballot papers, took away the ballot boxes and prevented this Hon'ble Court's order from being implemented. (v) That thereafter the meeting was adjourned by (he President of the Indian Olympic Association who had been directed to Chair the meeting by this Hon'ble Court and who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rters was to somehow or other usurp the office of president of the Indian Olympic Association with the hope that the Government of India and the Ministry of Sports would support him in his adventure so that he could be the president of the Indian Olympic Association to represent India at the Asiad to be held in Beijing and the respondent appellant on the very next day, broke open the lock of the office of the Indian Olympic Association in the Jawahar Lal Nehru stadium and had physically trespassed and occupied the office, plaintiff/applicant sought a direction that Thiru E. S. Adityan continued to be the president of the Indian Olympic Association and that the meeting, if any, purported to have been held by Thiru V. C. Shukla after the adjournment of the Special General Meeting on 15-6-1990 and the resolution if any purported to have been passed appointing Thiru V. C. Shukla as President of the Indian Olympic Association would be of no legal consequence and would have no legal effect. 8. The respondent/appellant however appeared and filed a counter-affidavit in the contempt application. He has stated in the counter-affidavit that he came to know about the orders of this Court only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court, an extract of a newspaper report supported by the affidavit of the Reporter and a copy of the First Information Report lodged by a Police Officer. 10. The respondent/appellant supported his stand by filing an affidavit of one V. K. Malhotra, who is the President of the Archery Association of India, a Member of Parliament and one of the members of the Association and affidavit of one G. S. Mandar, the President of the Wrestling Federation of India (Director General of Central Industrial Security Force) and a member of the Association, who attended the meeting and prepared the minutes of the meeting. 11. Thiru Murugan has filed a reply-affidavit and alleged, "No meeting at all was held at the Park Sheraton Hotel on June, 15, 1990 at which any resolution of no confidence was passed or V. C. Shukla elected President of the I.O.A. or where he was authorised thereafter to nominate any executive Council. That is for the reason that the report of the observer or any of the two other reports including the affidavit of the petitioner herein, give a true and faithful account of what transpired at the meeting where persons who held high offices or were office-bearers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed by the High Court whatever office he held before. I do not think that the said observer could have wholly given a wrong version of the incident as regards the order passed by this Court being made known to V. C. Shukla and others by the observer as well as by B. S. Adityan. Since the resolution proposed to be moved against Adityan, it was not proper for Mr. Adityan to be the President of the meeting. Such an objection could have been raised and objection could have been given in writing to Adityan and they would have requested the meeting to be postponed to get further orders from this Court. Even under the Constitution of IOA the President shall preside over the meeting of the Assembly and the Executive Council. Even assuming for a moment that the order of this Court directing Adityan to be President of the meeting was not made known, the Constitution IOA lays down that he shall be the President of such meeting. When the requisitionists wanted him not to preside over the meeting, as observed earlier, there could have been a requisition given to the President not to preside over the meeting." Learned trial Judge has found that on the facts pleaded before him, the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter as it found that the appeal was to be heard by this Court, but ordered "There will however be an order that neither Mr. V. C. Shukla nor Mr. Adityan shall represent the Indian Olympic Association at the Asian Games commencing on September 22, 1990. It is clarified that this order will not prevent either of them from going to attend the Games in their private capacity or in any other capacity. The Government of India, if it think fit may nominate any person eminent in the field of sports other than a party to the dispute in this case to represent the Government and accompany the Indian Olympic Team. It is clarified that such person shall, however, not claim in any manner to represent the Indian Olympic Association but will accompany the team merely as a representative to the Government of India. 15. Government of India however has given a letter on 20-6-1990 to Sri V. C. Shukla Stating, ".....in order to avoid any deadlock in the functioning of Indian Olympic Association (IOA) particularly in view of our participation in the forthcoming Beijing Asian Games being held in September-October 1990, Government would deal with you as President, IOA on interim basis, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the resolution would be by secret ballot and ballot papers would be signed by the Secretary General of the Indian Olympic Association as well as by the observer appointed by the Delhi High Court and only such ballot papers as were signed by them would be held to be valid. The Court had further directed that the meeting to be held on 15-6-1990 would be presided over by Sri Adityan who was the President of the Indian Olympic Association. Since the Delhi High Court had allowed the Special General Meeting to consider and vote upon the resolution afore-quoted which had been moved by certain members of the Association against the present set of office-bearers headed by B.S. Adityan. There were about 123 members who were divided into two groups, one headed by Adityan and the other headed by Shukla. Before the resolution could be considered and put to vote, Vijay Kumar Malhotra, a leading requisitionist announced that the requisitionists had no confidence in Adityan and that they did not want him to preside the meeting and Mandher, President of the Wrestling Federation of India, was requested to take the chair. Mandher took his seat near Adityan and proposed name of V. C. Shukla for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing on this as there was trouble from the very beginning and nothing was orderly." 17. From what we have already noticed, it can be said : (1) Certain members of the Association wanted convening of Special General meeting and accordingly gave notice dated 16-5-1990 to resolve that the House had lost confidence in his Executive Council and to elect a new Executing Council. The notice suggested that the meeting should be convened at New Delhi within the specified period or else the requisitionists would hold the said meeting on 16-6-1990 or on any day thereafter at the National Stadium, New Delhi to consider the above noted item in the agenda. (2) The second respondent representing the Association, filed a suit in the Delhi High Court, being Suit No. 1871 of 1990 in which suit a prayer for injunction was made against the requisitionists. The Delhi High Court on 6-6-1990 passed an order restraining the requisitionists from holding any meeting at Delhi but directed that the Special General Meeting to be held at Madras would be so held and the resolution with regard to loss of confidence in the Executive Council would also be considered and put to vote. The Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither ended in the pandemonium without any vote of no confidence or election of the meeting adopted the resolution of no confidence a majority vote by show of hands and authorised Shukla to nominate other members of the Executive Council. In either case, this Court's direction was not carried out. Whether it was on account of the supporters of Sri Shukla interfering or on account of Sri Adityan deliberately withholding the information about the order of this Court and whether the alleged meeting was adjourned after pandemonium by Adityan or was held under the Presidentship of Sri Mandher in which Sri Shukla was elected as the President by show of hands, Sri Shukla admittedly has assumed the office of President. 19. Our task in the instant case however is limited to first retracing or exploring the jurisdiction of the Court to pass an order of the nature of the impugned order which on the one hand is a sort of declaration and on the other an order of mandatory injunction against the appellant and examining whether the facts of the case warranted a direction of this nature or not. 20. There are powers of this Court which are spelt out in various provisions of the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r conferred, or any special form of procedure prescribed, by any other law for the time being in force. S. 482. Nothing in this Code shall be deemed to limits or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 22. We do not think it necessary in the instant case to make any comparative study of the Civil and Criminal Jurisdiction of the High Court or the powers that this may exercise in a civil or criminal proceeding because in the instant case, we are concerned with a civil proceeding pending in this Court in which a certain order was passed and since that order has been allegedly violated, a application contempt has been filed followed by a sub-application therein under S. 151 of the Code of Civil Procedure in which application the impugned order has been passed. We may however state one contention raised on behalf of the appellant that a contempt proceeding being a criminal proceeding, the rules that are applied to a criminal proceeding have to be applied in the contempt case filed on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court was confronted with an argument that if an injunction cannot be passed under the provisions of Order 39, Rule 1 or 2 of the Code of Civil Procedure, it would not be permissible to seek the power under Section 151 of the Code in order to justify such an order, accepted the contention that an injunction to restrain the respondent from executing a certain decree could not be granted in exercise of the inherent power of the Court (which has been subsequently overruled by the Supreme Court), but proceeded to consider the jurisdiction of this court as a Court of Record and said, "..... So far as a Court which is restricted to the terms of the Code of Civil Procedure it concerned, it has been held by Phillips, J. in Varadacharyulu v. Narasimhacharyulu AIR1926Mad258 , which I had occasion to follow in Ayyaperumal Nadar v. Mulhuswami Pillai AIR1927Mad687 that if an injunction cannot be passed under the provisions of O. 39, Rule 1 or R. 2, it is not permissible to seek the power under Section 151 of the Code in order to justify such an order. It has however been argued now that a High Court is not restricted to the terms of the Code, but possesses an equitable power, otherwise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve it as his opinion that a High Court had and has, independently of the Civil Procedure Code, power to make an order of the nature sought, and he answered in the negative the question whether there was anything in the Civil Procedure Code which took away that power. That case was decided under the old Code, but I do not think that there is anything either in S. 151 or any other provision of the new Code which would deprive a High Court of powers derived independently of it. Another case Singaravelu Mudali v. Balasubramania Mudali AIR1926Mad1126 , decided by Ramesam, J. has been cited to me as an authority in favour of the existence of the power, but I observe that he was able to bring the injunction within the terms of R. 2, O. 39 so that the remaking observations in the learned Judge's Judgment are, I think merely obiter, though, as I understand them, he was of opinion that a power exists apart from the terms of that rule. It appears to me however that Periakaruppan Chettiar v. Ramaswami Chettiar AIR 1228 Mad 491 is sufficient authority for the general proposition that this Court is not bound by the terms of the Code in issuing injunctions in appropriate cases. It appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court proceeded to take notice of the view of the Courts in India and referred to several authorities on the subject and stated (page 5) "This has long been the view in India. In 1867, Peacock C.J., laid down the rule quite broadly in these words In 'In re Abdool: (1867) 8 SWR 32 '. "There can be no doubt that every Court of Record has the power of summarily punishing for contempt. It is true the same learned Judge sitting in the Privy Council in 1883 traced the origin of the power in the case of the Calcutta, Bombay and Madras High Courts to the Common Law of England : See 'Surendranath v. Chief Justice and Judges of the High Court of Bengal', 1982 10 Tnd App 171 but it is evident from other decisions of the Judicial Committee that the jurisdiction is broader based than that. But however that may, be Sir Barnes Peacock made it clear the words "any other law" in Section 5 of the Criminal Procedure Code do not cover contempt of a kind punishable summarily by the three chartered High Courts. Now it is relevant to note in this connection that whatever the origin of the jurisdiction may be in the case of those three courts, the Charter of 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'inherent jurisdiction' to punish criminal contempt etc....." But reverting to the developments in India, the High Court of Allahabad was established in 1866 under the High Courts Act, 1861 and was continued a Court of Record. In 1906 the Privy Council remarked at page 108 of its judgment in -- 'In the matter of Sashi Bhushan Sarbadhicary I.L.R.(1907) All 95 : 1907 5 Cri LJ 57 "There is also no doubt that the publication of this libel constituted a contempt of Court which might have been dealt with by the High Court in a summary manner by fine or imprisonment or both." After this came the Government of India Act, 1915. Section 106 continued to all High Courts then in existence the same jurisdiction, powers and authority as they had at the commencement of that Act, and Section 113 empowered the establishment of new High Courts by Letters Patent with authority to vest in them the same jurisdiction, powers and authority "as are vested in or may be conferred on any High Court existing at the commencement of this Act." The Supreme Court has thereafter referred to various judgments of the Indian Courts including the Special Bench judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e words, (at p. 537 of AIR). "It is true that the High Courts constituted under charters and exercising ordinary original jurisdiction do exercise inherent jurisdiction to issue an injunction to restrain parties in a suit before them from proceeding with a suit in another court, but that is because the chartered High Courts claim to have inherited this jurisdiction from the Supreme Courts of which they were successors. This jurisdiction could be saved by S. 9 of the Charter Act (24 and 25 Vict. C. 104) of 1861 and in the Code of Civil Procedure. 1908, it is so expressly provided in S. 4. But the power of the Civil Courts other than Chartered High Courts must be found within S. 94 and O. 39, Rr. 1 and 2 of the Civil Procedure Code. The Code of Civil Procedure is undoubtedly not exhaustive; it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt or prejudice or interferes or tends to interfere with the due course of any Judicial proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner. The present appeal is concerned with the civil contempt only although it is conceded before us that there are several allegations in the contempt application, which make out a case of criminal contempt. Civil contempt is thus essentially concerned with the enforcement of judgment, decree, direction, order, writ or other process of a Court. The administration of justice can only be effective if it has the means to enforce the court's judgment and orders. That is why civil contempts are also called contempt in procedure. Courts also do not easily resort to the contempt procedure. Contempt is a blunt weapon. It is used sparingly and only in cases where when it is found difficult to generate obedience and respect for the court or when a court attempts to secure obedience to its. orders, directions, etc., or to elicit respect to it. It rarely does any such thing to grandiose its Officers on the man power including the judges. It does so, first to undo the wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or direction in the nature of injunction should be directed to the parties to the suit or litigation before it cannot easily be allowed. That is why the first thing to know in such a case is who the contemner is, a party to the proceeding or a stranger. In addition to holding those who have been expressly enjoined by an injunction to have committed a contempt if they disobey the Older, a person who is not a party to the action, who knowing of an injunction, order or direction, aids and abets the defendant in breaking it is also a contemner is a rule which has since received wide recognition by almost every court. The rule stated in Seaward v. Paterson 1897 Ch 545 has been so often repeated that it has almost become a common knowledge that a person, who is not enjoined by the Court's order is not bound by the injunction order or direction. That was a case in which an injunction had been granted restraining Paterson, his agents and servants inter alia from doing or suffering to be done which may interfere with the full and quiet enjoyment of the plaintiff or his under tenants of the premises adjoining or neighbouring to the first, second and third floors of certain premises. In c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her land not the property of the council. The result of the orders against the mother and son and the undertaking by the father has been, of course to clear from the registration the lands in the whole area in fact belonging to the council. The father has done his best to fulfil his undertaking in respect of the rest of the land by saying "so far as I made it provisional common land by the original application No. 807, then in respect of this land 1 withdraw it, and in so far as 1 was party to the applications in respect of rights 2279 and 2281. I am prepared to write a letter, take whatever step you require on my part, to assist the de-registration in respect of the rights provisionally registered in relation to this other land'. But the registration authority say. 'Well, in respect of this other land, we cannot de-register from these rights registered provisionally under 2279 and 2281 because you, the father, are the only person who created or caused their original registration. We are not prepared to act under the discretion given to us by a particular sub-section. We are not prepared to delete the registration of these rights in respect of this wider area of land; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a judgment of the Chancery Division, Walt on J. delivered adjustment in a case in which a certain undertaking to use best endeavours to obtain quotation for and permission to deal in shares and issue the same on behalf of the company, was an issue, but shareholders were charged for contempt. Learned Judge noticed the arguments. "Counsel for the plaintiffs argued that, in effect, there are two separate sets of persons in whom authority to activate the company itself resides. Quoting the well-known passages from Lord Haldane in Lenard's Carrying Co Ltd. v. Asiatic Petroleum Co Ltd. 1914 All ER Rep 280 he submitted that the company as such was only a juristic figment of the imaginatin, lacking both a body to be kicked and a soul to be damned. From this it followed that there must be some one or more human persons who did, as a matter of fact, act on behalf of the company, and whose acts therefore must, for all practical purposes, be the acts of the company itself. The first of such bodies was clearly the body of the directors, to whom under must forms of articles (see art 80 of Table A, or art 86 of the defendant company's articles which is in similar form) the manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh it is perfectly true that the act of the members in passing certain special type of resolutions binds the company, their acts are not the acts of the company. There would, he submitted, be no real doubt about this were it not for the use of the curious expression 'the company in general meeting' Which, in a sense, drags in the name of the company unnecessarily. What that premise really means, he submitted, is the member (or corporators) of the company assembled in a general meeting', and that if the phrase is written out in fall in this manner it becomes quite clear that the decisions taken as such a meeting, and the resolutions passed threat are decisions taken by, and resolution passed by the members of the company, and not the company itself. They are therefore in the position of strangers to the order and not in contempt by their act in voting as they please, whatever its effect may be." Having so put the contentions, the learned Judge said. "In my judgment, these submissions of counsel for the directors are correct. I think that in a nut shell the distinction is this. When a director votes as a director for or against any particular resolution in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital (as distinct from using its best endeavours to increase its capital), which must of necessity involve the shareholders voting in a particular manner. But I at any rate cannot envisage any ordinary situation (as distinct from for example, situation where all the shareholders were before the court and bound by the order) where such an order would ever be made." In other words, Walton, J treated the undertaking on behalf of the company to be one depending upon the precise condition and the precise construction of the nature of the order and undertaking and the conditions of contract under which the directors of the company functioned, but found it rather difficult to anticipate a situation in which any order could be passed in the absence of the shareholders as party to the proceeding to bind them. 34. In Z Ltd. v. A (1982) 1 All ER 556 Lord Denning read 3 judgment on behalf of the Court of Appeal adopting a device as parties in the case were cancelled by the letters of the alphabet, and stated the guidelines on the issue of assets under a special direction called mareva injunction effecting bank accounts and other assets and observed, "Once granted, a Mareva in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision and of the fact that an injunction had been granted against the defendant in the action prohibiting him from holding such a market. Hedges E. Chatterton said, at pp. 559-560 that the alleged contemnors were; "In my opinion, in just the same default as the original defendants would have been if they had done similar acts. (But) the cases cited clearly establish the right to have these attachments issued, and nothing can be more in point than the Killiney Foreshore case (unreported). But even without any of these authorities, ordinary commonsense would show that persons cannot be allowed to set at defiance the order of the court because they do not happen to be named in the injunction." If in an action between A and B for the possession of a dwelling house, B is ordered to give up possession and to refrain from retaking possession, As remedy, if someone, C, subsequently tries to dispossess him, is an action against C, not proceedings for contempt of court in disobeying an order to which C was never a party and in the breach of which he was not assisting. So long as the full importance of Sir Nicolas Browne-Wilkins on V.C.'s words "contempt of an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had been pressed, I should have found it my duty to commit Mr. Bailey for his contempt in intermeddling with these matters....." (c) As a result of (a) and (b) above, there is no English case in which a third party, C, has been held in contempt for doing any act which does not constitute a breach by the defendant enjoined, B, of the precise terms of the Orders." I am not sure whether this adds anything to (a) and (b). Whilst it certainly records that no one has been able to find a reported decision involving a finding of contempt by C, where the act complained of was intimately related to an order against B but did not involve assisting in doing that precise act, I am not sure of its significance, save that it underlines the fact that this is a novel situation. There is at least one case in the books which, if C had acted differently, would have raised the point. This is Galaxia Maritime S.A. v. Mineral import -- export (1982) 1 W.L.R. 539, where A obtained a Mareva injunction against B ordering B not to remove his assets from the jurisdiction including, in particular, cargo loaded on C's ship. C. for his own purposes --he wished to have the use of his ship and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... example to the punishment of a witness after he had given evidence (Attorney-General v. Butterworth, 1963) 1 QB 696, is not a case of widening its application. It is merely a new example of its application. In that case, as here, the trial judge, Nocatta, J., relied upon the fact that there was no such case in the books, but the court held that that was a distinction of fact, not principle; per Donovan, L..I. at pp. 724-725. Next, and this is really the final stage in his reasoning a part from the practical considerations with which I must deal hereafter, Sir Nocolas Browne-Wilkinson V. C., said, anti, p. 955 F-F; "the question which I have to decide whether, due to the chance that there is in existence an order of the court preventing the Guardian and the Observer from publishing, the appropriate sanction is contempt of court." At the risk of appearing to be a carping critic and I repeat my tribute to the clarity of his Judgment -- I think that the Vice-Chancellore misdirected himself in thus formulating the question. Contempt of court is not a sanction. Contempt of court is lawful conduct, the sanction for which is imprisonment, attachment, a fine or an order to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sual in the extent to which it involves extended judicial supervision throughout the ward ship ,which may last for years. I sympathies with the position in which Bal combed ,J. found himself. The proper discharge of the ward ship by the court in the exercise of the ancient duties of parents partial made it essential that there should be no publication and he had to find a way of achieving this result. But had any newspaper, other than the "News of the world", published details of the ward and had the Attorney-General sought to commit it or its editor for contempt consisting of disobedience of the order, the motion would have been dismissed, it would have been a reply of Lord Wellesley v. Earl of Morning ton ,(1848) 11 Boav. 180, which would have been indistinguishable. The fact that the order was addressed to the alleged contemnor would rightly have been disregarded as done without jurisdiction. But if the Attorney-General had moved instead upon the ground that the publication interfered with the administration of justice (Lord Wellesley v. Earl of Morning ton (No. 2), (1848) 11 Beav. 181), he would have succeeded and the fact that publication had taken place notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abetting a breach of a court order were re-classified as a civil contempt rather than a criminal contempt. The best course would no doubt be to abolish what remains of the distinction altogether, in accordance with the recommendation of the Phillimore Committee, Report of the Committee on Contempt of Court (Crand. 5794). But if the distinction is to remain, it does not make sense that a stranger to the order, who aids and abets a breach, should be criminally liable while the person to whom the order is directed and who himself commits a breach should only he liable for civil contempt. That is the sort of nonsense which does no credit to the law, as was pointed out forcibly enough by Lord Atkinson nearly 75 years ago in Scott, (1913) AC4I7". Coming to the third step to apply the law of contempt to a person who is not a party to the order in question he said, "It is when he comes to the third step in his reasoning that I begin with great respect, to part company from Sir Nicolas Browne-Wilkinson V.C.I accept ,of course, that it is a fundamental Principle with certain very limited exception, of which the best established is ward ship ,that our courts act in personam. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on itself. The central issue in the Guardian action is whether "The Guardian" should be restrained from publishing confidential information attributable to Mr. Wright. Once the information has been published by another newspaper, the confidentiality evaporates. The point of the action is gone. It is difficult to imagine a more obvious and more serious interference with the course of justice than to destroy the thing in dispute". 37. Balcombe L.J., in his judgment has also accepted that a third party may be charged for criminal contempt but not civil contempt and stated his opinion in these words, "Although I hope I have made it clear in the earlier part of this judgment that the reason why I consider that the publications of the respondents are capable of constituting criminal contempt of court is because they interfered with the administration of justice and not because they disobeyed orders made in the Guardian/Observer actions which were not addressed to them, I am conscious that this conclusion is reached by a sophisticated argument which may not be readily appearing to the layman. It seems to me that it would be preferable, in an appropriate case, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... publication of information about the ward) binding on the world at large, when persons who were potentially subject to that order had not been parties to the proceedings in which the order was obtained, with all respect to Sir John Donaldson M.R., that was the ratio of decision, and I still believe it to have been correct. It is true that I then said that I was satisfied that, if it were not an exercise of the parental jurisdiction in ward ship ,there would be no such power, but the question whether there might be other exceptions to the general rule was not then before me. I believe that there can be another exception to the general rule which would enable the court to make an order, binding on the world at large, in the circumstances of the present case, where such an order may be appropriate to preserve the subject matter of an action pending trial. The law of contempt is but one example of the court's ability to regulate its own procedure so as to ensure that justice prevails. The rule that courts normally act only in personam is but another example of the same process. If the court needs to ensure that the subject matter of an existing action be preserved against all comer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering with the administration of justice and treated it as a criminal contempt. As noticed in the citations above, the law of contempt in United Kingdom is based upon the broadest of the principle viz., that the Courts cannot and will not permit the interference with the due administration of justice. Its application is universal and it is applied in novel circumstances, Facts of a given case alone justify new example of committal action. In the ward ship injunction afore referred to, one such exception had been made. We find that the above rules has been confined to United Kingdom but it has been extended by the Canadian Courts also, at least once stated by the Viscount Haldane L.C. in SCOTT v. SCOTT, (1913) AC 417, 437, "white the broad principle is that the Courts of this country must, as between the parties, administer justice in public, this Principle is subject to apparent exceptions, such as these to which I have referred to. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is one. In the two cases of wards of court and of lunatice, the court is really sitting prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Their Lordships can find no authority for so wide a proposition. It is certainly not enunciated or indeed hinted at in the cases referred to nor do they think it is sound in principle." 40. A Special Bench of the Patna High Court in Pratap Udai Nath v. Sara Lal, AIR1949Pat39 considered a case of disobedience of an injunction decree and held that equity acts in personam and reiterated the aforementioned law in Seaward v. Paterson 1897 1 Ch 545 in these words, "Equity acts in personam, and an injunction is a personal matter. The Ordinary rule is that it can only be disobeyed in contempt by persons named in the writ. None of the opposite parties in present case were defendants in the suit or named in the decree. Mr. B. C. De, for the petitioner seeks to overcome this difficulty upon the principle laid down in Avery v. Andrews, (1882) 51 U Ch 414 : 46 LT 279 and Seawards v. Paterson, (1897) 1 Ch 545 : & 6 LJ Ch 267 to the effect that persons not party to the injunction may be proceeded against for contempt for aiding and abetting the breach. There can be, however, no question of aiding and abetting where there is no principal offender. There is no one whom the opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have a return of the said shares within fourteen days". Am I to spell out of that an order on the defendant company to do something ? I think not. if the Court is to punish any one for not carrying out its order the order must in unambiguous terms direct what is to be done. Secondly, the opposite party No. 2 being no party to the proceedings resulting in the order of Roxburgh, J., that order could not have directed him to do anything. As Lord Eldon pointed out in Ivcson v. Harris, (1802) 7 Ves. 251, it was not competent to the Court, "to hold a man bound by an injunction, who is not a party "in the cause for the purpose of the cause." See also S. N. Bannerjee v. Kuchwar Lime & Stone Co. Ltd.. The order of Roxburgh, J. not being therefore an order on the opposite party No. 2 there is no question of his disobeying that order or committing contempt by any disobedience thereof. It may be that if the opposite party No. 2 is a tenant of opposite party No. 1, as he claims to be, the order may have been binding on him in certain circumstances under R. 35 of O. 21 of the Code of Civil Procedure, as was held in Yusuf v. Jyotish Chandra Banerji AIR1932Cal241 . But thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d deliver possession of certain premises to the party entitled to possession under an order of court, but immediately after the Sheriff had gone away, the defendant and his men retook possession with the help of a riotous mob from the party to whom possession had been delivered by the Sheriff and they were held liable in contempt. Learned counsel for the contemnors had argued that "the writ in fact had been executed, and so there "was no ground for a proceeding for contempt". Baron Pollock said, in his judgment in this case. In case like this, where judgment had been given that the plaintiff shall recover possession of premises and a writ has been issued to the Sheriff to deliver possession; if the officer has been apparently put in possession and the dependent chooses at some later time to change his mind and come back to the premises and by craft or force to again obtain possession, it was right that an attachment should be issued against him on the ground that he had not really given up possession. Whenever, the writ being put in force, the defendant or anybody who assists him does not fully and honestly give up possession, but only colorable does so, the Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, a suit was instituted for declaring that the petitioner and certain other persons are not competent to act as shareholders. A temporary injunction was asked for restraining the defendants from acting as shareholders of the company. The Court passed an injunction not restraining the shareholders in question from voting at the meeting, but restraining the company from holding a meeting until further orders. The order was not served on the petition. On the day of the meeting, some of the shareholder including the petitioner proceeded to a private house and held a meeting whereby they purported to appoint directors, etc. The petitioner was not a party to the suit. The Court on such facts held, "These are the facts and one has only got to state them to see that there has been an error at every stage in these proceeding. There are proper ways in which a meeting of a company can be called either by the directors in accordance with the provisions of the Articles of Association or by the shareholders on requisition, also in accordance with the provisions of the Articles of Association. There is only other way of which I know, apart from any special Articles of Association, that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate, who was the legal adviser of the company. It appears that the notice of the orders of injunction had been served telegraphically to respondents t and 2 informing them of the prohibitory orders. Petitioner himself went to the notified place of meeting at 9.30 a.m. on 14-12-1964. He found the shareholders and directors present including the respondents. Petitioner informed those persons of the ex parte interim injunction and pointed out that holding and passing the contemplated resolution would amount to flouting the orders of the Court and to contempt of court. In spite of this, apparently due to an earlier written legal opinion furnished by the 11th respondent concerning the validity and legal effect of the interim orders of injunction, the meeting was actually held and the resolution was passed. The Bench said (Paras 7 and 9): "We have been at some pains to examine the law on this aspect of the flouting of an order of Court, which may be passed without territorial jurisdiction, for, it seems to as that this is of some importance and cases might arise frequently in actual judicial administration. It seems to be abundantly clear that the question whether a court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law applied in England and found (1) a party to the suit if he had notice or knowledge of the order of the Court and (2) a third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the order of injunction guilty of civil contempt and otherwise found a (bird party guilty of criminal contempt if he has been found knowingly obstructing implementation of its order of direction ,if ii is found in the instant suit that Sri Shukla was directly or indirectly a party defendant in the suit and the order of the learned single Judge was directed to his conduct also and he violated the order after notice or knowledge, he shall be guilty of civil contempt. He can still be found guilty of civil contempt if he is found to have aided and abetted the violation of the order of the Court. Even otherwise it is found that he obstructed or attempted to obstruct the implementation of the Court's injunction/direction, he may be found guilty of criminal contempt provided he had the notice or the knowledge of the order of the Court. It will be only after a determination of the nature of the disobedience that it will be possible for the Court to say whether the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of law. 48. In Hari Nandan v. S. N. Pandita AIR1975All48 , the Allahabad High Court has taken the same view, namely that when a party has been dispossessed in disobedience of the order of injunction, the Court can in exercise of its inherent power pass such order for ends of justice as would undo the wrong done to the aggrieved party. A similar view has been expressed in Magna v. Rustam. 49. Kerr on Injunctions, 6th Edition, Page 41 has said : "But where the injury is of so serious or material a character that the restoring things to their former condition is the only remedy which will meet the requirements of the case, or the defendant has been guilty of sharp practices or unfair conduct, or has shown a desire to steal a march upon the plaintiff, or to evade the jurisdiction of the Court, the injunction will issue, notwithstanding the amount of inconvenience to the other party, and though the expense thereby caused to him will be out of proportion to any advantage the plaintiff may derive from it." 50. In one of the recent judgments in Sujit Pal v. Prabir Kumar Sun AIR1986Cal220 , a Division Bench of the Calcutta High Court has reiterated this view and stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that for a breach of the injunction by a party or a stranger for aiding or abetting the breach alone, the Court's inherent power can be exercised and not in a case of a third party, who had the knowledge of the order, but decided to violate it, who may be guilty of obstructing the administration of justice still, will not be subject to any restitution order? This we feel needs no detailed discussion. No person can obstruct the path of justice. No one can escape by committing a gross and violent obstruction to the implementation of the order/direction of the Court. The only question relevant in such a situation will be, whether the right which such a person has pleaded has been acquired by the violation of the order or had existed in him independently unaffected by the injunction. There can be no other law than one stated above that no person should be allowed to reap the benefits of a wrong done by him and thus whether he is a guilty of civil contempt or criminal contempt, the wrong doer can always be subjected to the inherent jurisdiction of the Court, which is not different for the civil or criminal contempt. Whether it is a civil concept or a criminal contempt, it is a conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s Law Dictionary explains the proposition thus; "Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant. This understanding accords with justice and reason and has the support of Sutherland. The learned Additional Solicitor-General also cited the case of Matajog Dobey v. H. C. Bhari [1955]28ITR941(SC) , and Commissioner of Commercial Taxes v. R. S. Jhaver [1968]1SCR148 , to substantiate his thesis that the doctrine of implied powers clothes the Commissioner with vest incidental powers. He illustrated his point by quoting from Sutherland Frank E. Harack Jr. Vol. 3 "Necessary implications. Where a statute confers powers or duties in general terms, all powers and duties, incidental and necessary to make such legislation effective are included by implication. Thus it has been stated. "An express statutory grant of power of the imposition of a definite duty carries with it by implication in the absence of a limitation, authority to employ all the means that are usually emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ubi aliquid conceditur, conceditur et id sine quo res ipsa non potest (where anything is conceded, there is conceded also anything without which the thing itself cannot exist) (vide Eral Jowitt's Dictionary of English Law 1959 Edn. p. 1797). Whenever any thing is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that some thing else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subject until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reasonable ground to believe that the danger apprehended is real and imminent. This test we accept on the basis of balance of convenience. This Court has not yet found or laid down any formula or test to determine how the balance of convenience in a situation of this type, or now the real and imminent danger should be judged in case of preventive publication of an article in a pending matter..... The law of contempt must be judged in a particular situation. The process of due course of administration of justice must remain unimpaired. Public interest demands that there should be no interference with judicial process and the effect of the judicial decision should not be pre-empted or circumstanced by public agitation or publications. It has to be remembered that even at turbulent times through which the developing countries are passing, contempt of Court means interference with the due administration of justice." The narrati Korren on of injunction above, the law as stated in Bhagat Singh v. Dewan Jagbir Sawhney AIR1941Cal670 and the statement of law in Sujit Pal v. Prabir Kumar Sun AIR1986Cal220 (supra) lend support to the view that any action under Order 39, Rule 2A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed ineffective and unenforceable. When then however be the consideration that will induce the Court to resort to such jurisdiction will depend upon the nature of the injury, its seriousness and the threat it created to the enforcement of the order of the Court and the public interest of the administration of justice on the one hand and the rights of the parties on the other hand. As observed in the case of Manga v. Rustam, the object of such an order being to safeguard the rights of a party against a threatened invasion by the other party, if in disobedience of the order of injunction, such rights are invaded during the pendency of the suit, the inherent power under Section 151 of the Code can be invoked and a mandatory injunction can be granted. The Courts have also to lake notice of the larger and higher interests of the administration of justice which is a public interest and this should receive the first priority in considering whether the Court's special or inherent power should be exercised or not. Grant of a temporary mandatory injunction will naturally thus require not only a strong Prima Facie Case To Ensure That the Court's injunction or direction should f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation. If this clause is required to be applied, it may be deemed that the Association is the second defendant, but then the suit had to be filed at New Delhi and not at Madras. Even if it is assumed that the Association has been a defendant and thus the direction issued by the Court was directed to the Association, a question will arise whether the order of the Court merely because it was addressed to the Secretary-General, who represented the Association, was an order addressed to the representatives, who had arrived to participate in the Special General Meeting or not. The General Assembly had been defined in the Rules and Regulations of the Association to mean and include the Representatives deputed by the Members in accordance with the Rules and the persons holding Indian citizenship and who are Members of the International Olympic Committee. Article III names the members as National Sports Federations/Associations, whose sport is included in the Olympic/Asian or Common Wealth Games, National Sports Federations/ Associations, which represent widely played Indian sports recognised by the I.O. A., Olympic Associations of State, as well as Centrally Administered Union Territ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d guilty of contempt but as a stranger or a third party for obstructing the course of justice, a criminal contempt and not a civil contempt. In the case of a civil contempt, found to have been committed by Sri Shukla, the Court shall have full power to direct him by an order in the nature of a mandatory injunction to restitute or restore the Status Quo as it obtained on the date of the order besides such punitive actions which the Court may take against him in exercise of its power under Order 39, Rule 21 of the Code of Civil Procedure or as a Court of Record under Art. 215 of the Constitution of India read with the relevant provisions of the Contempt of Courts Act, 1971. Incase it is found however that the order of the Court had not been addressed to Sri Shukla as a representative of one of the members of the Association, nonetheless it is found that he had the knowledge of the order/direction of the Court, and he knowingly and deliberately constructed the implementation of the order/direction of the Court, he may be found guilty of criminal contempt; the Court shall not be powerless even in such a case and may direct Sri Shukla or any other person who may be found to have stood i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and such other principles which govern or emerge from the rule of the balance of convenience on the other hand. Learned trial Judge has got jurisdiction for making an order in the nature of mandatory injunction but on principles that we have noticed above. 59. Mr. K. K. Venugopal has conceded that Learned trial Judge has not addressed himself to the above aspects of the case. Mr. Cooper, who has followed him, has submitted that the question aforementioned are questions of law. Both of them however have urged that this Bench as the Court of Appeal should determine these questions and decide the controversy finally. Mr. Kapil Sibbal on the other land, however, has submitted that any determination of these questions at this appellate stage will cause serious prejudice to the interests of the appellant as he may be deprived of a right of appeal under the Letters Patent against any finding on the question above by the learned trial Judge and in case it is found to be a criminal contempt of his right of being tried by a Division Bench subject to the statutory appeal before the Supreme Court. 60. We have given cur anxious consideration to the matter. We are of the opinion that it will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got as its members besides the President and the Secretary-General, 9 Vice-Presidents, 6 Joint-Secretaries, a Treasure. 7 members elected from among the Representatives of the State Olympic Associations and 12 members elected from among the Representatives of National Special Federations/Associations/ S.S.C.B. who are not before this Court. It is not known whether they desire to be restored as members of the Executive Council and are willing and ready to function in the said capacity. It is one of the settled rules that even a temporary mandatory injunction should not be granted in favour of a person, who is not willing to get such an order. It will be inappropriate therefore to restrain Sri Shukla until the entire matter is finally decided as observed by us earlier. But at the same time, it shall be wholly inappropriate to allow Sri Shukla to function as the President or those nominated by him to constitute the Executive Council in view of the seriousness of the allegations made on behalf of the plaintiffs because it is clearly the case of Sri Shukla that he was elected as the President of the Association as a result of the no-confidence resolution, which if at all adopted, was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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